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Why Shouldn't The Supreme Court's Process Be Publicly Visible [1]

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Date: 2023-01-19  

Such a Big Deal has been made of the leak of a draft opinion from the Supreme Court last spring. It turned out to be pretty close to what the Supreme Court has now declared the law of the land. We in the public were not supposed to see it until it got handed down, like Tablets on Mount Sinai. There’s a lot of talk about how important it is that these Justices’ arguments and decision-making processes should be invisible to the nation until the very end, when it’s all over.

Is it really so clear that this kind of privacy about the Court serves the national interest? I’d like to hear — I’d like my fellow Americans to hear — the arguments about what’s constitutional, what’s just. I’d like for the public to understand what’s at stake in each case, and to judge for themselves what’s right after they’ve heard the arguments.

Would it really hurt the Supreme Court process if its debates were as public as those that happen on the floor of Congress?

Maybe if the public catches wind of a bad upcoming decision from following the debate, the public can make its judgment known. If the public is right, perhaps mistakes can be avoided by being caught earlier. And if the public is wrong, the justices will understand that there’s a need to make the case more effectively.

Is it foolish to imagine that if people were exposed to more, the weight of public opinion would more often have a beneficial effect than a harmful one?

Do we need to insulate the Court from public opinion, until a decision is rendered? So long as the public pressure is only through opinion and not through any kind of threat, I can’t see why we wouldn’t be in better shape if more people understood more about the merits of the case. I think we’d have fewer bad decisions.

Which means I think that one of the problems with the Court is that it is too insulated from the society, with lifetime appointments and all this privacy.

I’m glad we had a couple of months to contemplate Alito’s terrible opinion in Dobbs. By the time it came down, we had a chance to see what a fundamentally theocratic decision it was. Even before it was the law of the land, we could see the dogmatism, the contempt, the impulse to compel everyone to one’s orthodox position.

In what way would it have been better if that draft had stayed secret?

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